JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

29 September 2009 (*)

(Civil service – Members of the contract staff – Recruitment – Selection procedure CAST 27/Relex – Non‑inclusion in the database – Cancellation of questions – Verbal and numerical reasoning test – Equal treatment)

In Joined Cases F‑20/08, F‑34/08 and F‑75/08,

ACTIONS under Articles 236 EC and 152 EA,

Jorge Aparicio, residing in Antiguo Cuscatlan (El Salvador) and 18 other members of the contract staff of the Commission of the European Communities whose names appear in the annex to this judgment under numbers 1 to 18, represented by S. Orlandi, A. Coolen, J.‑N. Louis and É. Marchal, lawyers,

applicants in Case F‑20/08,

Anne Simon, member of the contract staff of the Commission of the European Communities, residing in Nouakchott (Mauritania), represented by S. Orlandi, A. Coolen, J.‑N. Louis and É. Marchal, lawyers,

applicant in Case F‑34/08,

Jorge Aparicio, residing in Antiguo Cuscatlan (El Salvador) and 46 other members of the contract staff of the Commission of the European Communities whose names appear in the annex to this judgment, represented by S. Orlandi, A. Coolen, J.‑N. Louis and É. Marchal, lawyers,

applicants in Case F‑75/08,

v

Commission of the European Communities, represented by J. Currall and B. Eggers, acting as Agents,

defendant,

THE TRIBUNAL (Second Chamber),

composed of H. Kanninen, President, I. Boruta and S. Van Raepenbusch (Rapporteur), Judges,

Registrar: S. Cidéron, Assistant,

having regard to the written procedure and further to the hearing on 12 March 2009,

gives the following

Judgment

1        By applications received at the Tribunal Registry:

–        on 19 February 2008 electronically (the original being lodged on 27 February 2008) in Case F‑20/08 Aparicio and Others v Commission,

–        on 11 March 2008 electronically (the original being lodged on 12 March 2008) in Case F‑34/08 Simon v Commission, and

–        on 1 September 2008 electronically (the original being lodged on 8 September 2008) in Case F‑75/08 Aparicio and Others v Commission,

the applicants seek the annulment of the decisions of the European Personnel Selection Office (EPSO) of 25 October 2007 not to include their names on the list of successful candidates and in the database of the CAST 27/Relex recruitment procedure.

2        The applicants in Case F‑20/08 and the applicant in Case F‑34/08 together also brought Case F‑75/08 along with 26 new other applicants (‘the other applicants in Case F‑75/08’).

 Legal context

3        Article 82 of the Conditions of Employment of Other Servants of the European Communities (‘the CEOS’) provides:

‘...

2. Recruitment as a member of the contract staff shall require at least:

(a)      in function group I, successful completion of compulsory education;

(b)      in function groups II and III:

(i)      a level of post-secondary education attested by a diploma, or

(ii)      a level of secondary education attested by a diploma giving access to post‑secondary education and appropriate professional experience of at least three years, or

(iii) where justified in the interest of the service, professional training or professional experience of an equivalent level;

(c)      in function group IV:

(i)      a level of education which corresponds to completed university studies of at least three years attested by a diploma, or

(ii)      where justified in the interest of the service, professional training of an equivalent level.

...

5.      [EPSO] shall, at their request, provide assistance to the different institutions with a view to the selection of contract staff, in particular by defining the contents of the tests and organising the selection procedures. [EPSO] shall ensure the transparency of selection procedures for contract staff.

6.      Each institution shall adopt general provisions on the procedures for engagement of contract staff in accordance with Article 110 of the Staff Regulations [of Officials of the European Communities].’

4        Article 5 of the General implementing provisions of 7 April 2004 on the procedures governing the engagement and the use of contract staff at the Commission of the European Communities (Administrative Notices No 49‑2004, of 1 June 2004, ‘the GIP-CS’), provides:

‘1.      The selection procedure for [members of the contract staff under Article 3a of the CEOS] shall comprise the following steps:

(a)      launching of general calls for expression of interest specifying the minimum eligibility criteria concerning general competencies and key qualifications and indicating that, depending on the number of applications received, the selection committee referred to in point (e) may apply stricter requirements within the selection criteria published;

(b)      entering of applications electronically in the database set up for this purpose;

(c)      definition of specific competency profiles and qualifications by the [authority authorised to conclude contracts], after consultation of the interested services or bodies;

(d)      testing of candidates matching the profiles and qualifications referred to in point c); the tests shall focus in particular on the candidates’ general aptitudes, in particular their verbal and numerical reasoning capacity, and on their linguistic ability; candidates who have passed the tests will be listed in the database; these listed applications shall be saved in the database for a period of two years;

...

2.      ... [T]he tests described in paragraph 1, point d), shall be organised by EPSO or under its responsibility.

3.      Candidates shall be informed about the outcome of the procedures described in paragraph 1(d) to (h).’

5        Article 3(2) of Decision 2002/620/EC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman of 25 July 2002 establishing [EPSO] (OJ 2002 L 197, p. 53) provides:

‘The Office may assist the institutions, bodies, offices and agencies established by or in accordance with the Treaties with internal competitions and the selection of other servants.’

 Background to the dispute

6        The applicants are members of staff posted under various regimes in the delegations of the Commission in non‑Member States.

7        In a memorandum of 19 February 2007, the Director of the ‘External Service Directorate’ of the ‘External Relations’ Directorate General (‘DG External Relations’) informed the heads of delegation that EPSO tests would be organised in 2007 for members of the contract staff (‘the memorandum of the External Service’). The memorandum indicated that only those who were successful in those tests would have the possibility of continuing their career as members of the contract staff. Those tests were to be made up of three parts: a verbal and numerical reasoning test, another test of knowledge of the European Union and lastly a competence test. The memorandum of the External Service stated the following:

‘All candidates of the [External Relations] Delegations/External Service group III and IV profiles will be tested …: verbal and numerical reasoning tests, knowledge of the European Union and a competence test. Those tests will be organised in French, English, German and Spanish only and the chosen language of the test cannot be the main language of the candidates ...

The tests are not eliminatory in nature (like competitions to become a European civil servant). Rather, they should be seen as a test of knowledge of required skills, including: ability to work in a second Community language, understanding of EU institutions and their work, and specific competencies of a field of work in the [External Relations] Delegations/External Service.’

8        On 28 March 2007, EPSO published on its internet site Call for expression of interest EPSO/CAST/EU/27/07 (‘the call for expression of interest’), to constitute a database of candidates to be recruited as members of the contract staff. That database was intended for the institutions and Community agencies as well as for delegations of the Commission in non‑Member States. The call for expression of interest mentioned in particular:

‘Candidates who meet the conditions set out in the Call for expression of interest will be invited to sit tests in the late spring/early summer 2007 to assess their general aptitudes and in particular their verbal and numerical reasoning capacity as well as their knowledge of European affairs. Candidates will prove their linguistic ability as they will sit the tests in their second language (English, French or German).

...

Candidates who are successful in all the tests will be listed in a database which will be put at the disposal of Institutions and Agencies for their recruitment needs.’

9        On 20 April 2007, the Vice-President of the Commission and the Member of the Commission in charge of External Relations inter alia wrote the following to members of staff in post in the delegations:

‘The tests are not a competition/concours – there is no fixed limit on the number of successful candidates, meaning that they are not eliminatory in the same way [as] a competition/concours.

These tests will have a greater emphasis on the competency tests as this is the most important aspect for work in delegations. Nevertheless, the Commission also expects [members of the contract staff] to demonstrate their knowledge of European institutions and the ability to work in a second [C]ommunity language ..., which is a requirement of the staff rules (CEOS), so these elements will also be part of the EPSO tests.’

10      On 25 May 2007, EPSO published on its internet site general information on the structure and evaluation of the tests concerned. It was, inter alia, provided:

‘In order to appear in the final database, all candidates must pass a series of tests:

–        aptitude to verbal reasoning ... and to numerical reasoning ...;

–        knowledge of the European Union …;

–        specific knowledge (in the area of interest indicated by the candidate in the application form).’

11      The general information on the test structure and evaluation added:

‘For the purpose of the final global score, each test will have the following relative weight:

(i)      verbal and numerical reasoning            30% of total;

(ii)      EU knowledge                              20% of total;

(iii) specific competences                   50% of total.’

12      Lastly, the general information on the test structure and evaluation stated that ‘the pass thresholds’ to enable inclusion in the database for function group IV were as follows:

–        minimum required on verbal and numerical reasoning tests: 50%;

–        minimum required on competence test: 55%;

–        global results for all the tests: 60%.

13      All the applicants were candidates in that selection procedure for the function group ‘External Relations’ (‘CAST 27/RELEX’).

14      The tests in connection with the call for expression of interest took place on 13 July 2007.

15      Each of the applicants was informed, on 25 October 2007, that they had been unsuccessful because they had not obtained the requisite minimum score for the verbal and numerical reasoning test (‘the contested measures’).

16      EPSO decided to cancel questions 31 and 46 of the verbal and numerical reasoning test. The parties agree that that cancellation had no impact on the applicants’ results.

17      Between 30 October and 25 November 2007, the applicants in Cases F‑20/08 and F‑34/08 applied to EPSO for a reconsideration of their results because certain questions in the verbal and numerical reasoning test were inappropriate.

18      Between 9 November 2007 and 22 January 2008, EPSO refused to grant that request of the applicants in Cases F‑20/08 and F‑34/08.

19      On 25 January 2008, the applicants in Cases F‑20/08 and F‑34/08 submitted ‘supplementary complaints’, whilst the other applicants in Case F‑75/08 made similar complaints against the contested measures concerning them.

20      The applicants in Case F‑20/08 lodged their case before the Tribunal on 19 February 2008. The applicant in Case F‑34/08 did so on 11 March 2008.

21      On 20 May 2008, the authority authorised to conclude contracts rejected all the complaints and ‘supplementary complaints’ lodged on 25 January 2008. On 1 September 2008, the applicants in Cases F‑20/08 and F‑34/08 brought a second action against the contested measures together with other applicants for whom it was their sole action. That application was lodged as Case F‑75/08.

 Forms of order sought and procedure

22      The applicants claim in Joined Cases F‑20/08, F‑34/08 and F‑75/08 that the Tribunal should:

–        annul the contested measures;

–        order the Commission to pay the costs.

23      In Case F‑75/08, the applicants claim also, in their first head of claim, that the Tribunal should declare Article 5(1)(d) of the GIP-CS to be illegal.

24      The Commission contends in Joined Cases F‑20/08 and F‑34/08 that the Tribunal should:

–        dismiss the action as inadmissible and, in the alternative, as unfounded;

–        order the applicants to pay the costs.

25      The Commission contends in Case F‑75/08 that the Tribunal should:

–        dismiss the action;

–        order the applicants to pay the costs.

26      By order of the President of the Third Chamber of the Tribunal of 1 July 2008, Cases F‑20/08 and F‑34/08 were joined for the purposes of the written and oral procedure and of the final decision, pursuant to Article 46(1) of the Rules of Procedure.

27      By order of the President of the Second Chamber of the Tribunal of 3 February 2009, Cases F‑20/08 and F‑34/08, on the one hand, and Case F‑75/08, on the other hand, were joined for the purposes of the oral procedure and of the final decision, in accordance with Article 46(1) of the Rules of Procedure.

 Law

1.     The first head of claim in Case F‑75/08

28      By their first head of claim in Case F‑75/08, the applicants request the Tribunal to declare that Article 5(1)(d) of the GIP-CS is illegal. Although, in an application for annulment of an individual measure having adverse affect, the Community judicature does in fact have jurisdiction to declare, incidentally, the illegality of a provision of general application upon which the contested measure is based, the Tribunal does not, however, have jurisdiction to make such declarations in the operative part of its judgments (Joined Cases F‑134/07 and F‑8/08 Adjemian and Others v Commission [2009] ECR‑SC I‑A‑1‑0000 and II‑A‑1‑0000, paragraph 38).

2.     Admissibility of the actions

29      The Commission contends that the steps undertaken between 30 October and 25 November 2007 by the applicants in Cases F‑20/08 and F‑34/08 are simple requests for re-examination. Thus, the purported ‘supplementary complaints’ of 25 January 2008 should be considered to be the first complaints made by the applicants. As a result, they brought Cases F‑20/08 and F‑34/08 before the Tribunal, on 19 February and 11 March 2008 respectively, without waiting for a reply to their complaint from the authority authorised to conclude contracts, since that response was not given until 20 May 2008. Those actions were, consequently, premature and inadmissible.

30      In its pleadings the Commission also objects that Case F‑75/08 is inadmissible by reason of lis alibi pendens inasmuch as it was brought by the applicants in Cases F‑20/08 and F‑34/08 who had already applied for the annulment of the same contested measures, on the basis of the same pleas, in those cases. At the hearing, the Commission, however, abandoned that objection on the ground that inadmissibility by reason of lis alibi pendens cannot apply where the first action is itself inadmissible.

31      Lastly, the Commission contends that, in Case F‑75/08, 34 of the applicants ceased to have an interest in bringing proceedings because their names were included on the database put at the disposal of institutions and agencies for their recruitment needs after being successful in the selection test organised in 2008, while they were still under contract.

32      It follows, however, from the case‑law that the Community judicature has jurisdiction to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on the objection of inadmissibility raised by the defendant (Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 51 and 52; Case T‑367/03 Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission [2006] ECR II‑873, paragraph 30; Case F‑134/06 Bordini v Commission [2008] ECR‑SC I‑A‑1‑0000 and II‑A‑1‑0000, paragraph 56; and Adjemian and Others v Commission, paragraph 37). In the circumstances of the dispute, the Tribunal is of the view that it is necessary first of all to examine the merits of the dispute before ruling, if necessary, on the pleas of inadmissibility.

3.     Merits

33      The applicants adduce identical arguments in support of their three cases. In the light of the arguments in their applications, the applicants must be considered in fact to rely on three pleas. The first plea alleges infringement of Article 82(5) of the CEOS, the GIP-CS and the call for expression of interest and breach of the principle that the selection procedures are to ensure the recruitment of the most competent members of staff. The second plea alleges infringement of the principle of equality. The third plea is derived from Article 1d of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) and from the duty to state grounds.

 The first plea, alleging infringement of Article 82(5) of the CEOS, the GIP-CS and the call for expression of interest and of the principle that selection procedures are to ensure the recruitment of the most competent members of staff

 Arguments of the parties

34      The applicants claim that, according to the memorandum of the External Service and the letter of the Vice-President of the Commission and the Member of the Commission in charge of External Relations, the objective of CAST 27/RELEX was to test the candidates on their knowledge of the European Union, on their specific competences to take up a post in a delegation and on their capacity to work in a second Community language. Moreover, the memorandum from the External Service did not announce the organisation of an eliminatory test of verbal and numerical reasoning.

35      The applicants infer from this that that test was incompatible with the selection objectives pursued by the Commission. The fact that it was eliminatory in nature made it even less compatible with those objectives.

36      Moreover, in the applicants’ submission, Article 5(1)(d) of the GIP-CS does not mean that all candidates should be required to take an eliminatory test of verbal and numerical reasoning. In the present cases, the eliminatory nature of the test was arbitrary. To begin with, the test of EU knowledge was not eliminatory. Second, it is inexplicable for members of staff already in service at the Commission who have already proved their general aptitude to be eliminated on the basis of a test which provided no information as to their qualifications and competences. Third, no account was taken of the fact that candidates who already have a long period of professional experience are not as familiar with verbal and numerical reasoning tests as younger candidates are.

37      Lastly, in Case F‑75/08, the applicants infer from ‘Article 27 of the Staff Regulations and [from Article] 15 of the CEOS’ (which, in view of the content of the provision, should be understood as a reference to Article 12 of the CEOS) the principle that the selection procedures are to be directed to securing the recruitment of the most competent candidates. They claim to have already proved their abilities by fulfilling their duties in the delegations of the Commission under various systems and claim that the GIP-CS would breach that principle were it to be interpreted as requiring the organisation of eliminatory tests not exclusively based on merit.

38      In reply, the Commission notes that Article 5(1) of the GIP-CS requires there to be an eliminatory verbal and numerical reasoning test. It also points out that the call for an expression of interest and the general information on the structure and evaluation of the tests also make clear that only the names of the candidates who passed all the tests could be included in the database.

39      According to the Commission, the verbal and numerical reasoning test has the purpose of eliminating persons who have extensive knowledge and special competences but lack the reasoning capacity to use them. It enables the Commission to ensure that members of staff recruited can be assigned to a wide variety of tasks. That requirement is particularly important for those working in a delegation because the interest of the service necessitates regular rotation of staff there. Lastly, the verbal and numerical reasoning test contributes to ensuring equality of opportunity between external candidates and those already employed, the latter not having any right to be favoured by the choice of a certain type of test.

40      The Commission claims, moreover, that it is apparent from the general information on the structure and evaluation of the tests that the verbal and numerical reasoning test accounted for only 30% of the total marks of the tests and that it was thus of less weight than the specific competences test which accounted for 50% of the total marks.

41      The Commission also submits that there is no contradiction between the call for expression of interest and the note of the External Service and the letter of the Vice-President of the Commission and the Member of the Commission in charge of External Relations. In particular, that letter merely stated that the tests were not to lead to an elimination of candidates based on a comparative examination, as happens in a competition where the number of successful candidates is fixed in advance. The letter did not state that candidates were exempt from the requirement to pass all the tests. In any event, that letter and the memorandum of the External Service had the sole objective of informing members of staff already employed, so as to encourage them to take part in the tests. It could not exempt the services concerned from the obligation to comply with Article 5 of the GIP-CS and the call for expression of interest, nor could it create any entitlement in favour of the members of staff concerned.

42      Lastly, the Commission considers to be inadmissible the plea alleging that the GIP-CS are contrary to the CEOS in so far as the GIP-CS are interpreted as requiring the organisation of eliminatory tests not exclusively based on merits. That argument did not appear in the complaints of 25 January 2008, since the complainants maintained only that the eliminatory nature of the verbal and numerical test was not compatible with the specific purpose of the selection test concerned. Moreover, the argument lacks precision. In any event, Article 82(6) of CEOS leaves to the authority authorised to conclude contracts a wide discretion to fix the conditions of engagement of members of the contract staff and the eliminatory nature of the verbal and numerical reasoning test was in the interest of the service for the reasons already set out.

 Findings of the Tribunal

–       Preliminary remarks

43      Article 82(6) of the CEOS grants each institution a wide discretion in the choice of the manner of organising the procedures for selection of contract staff under Article 3a of the CEOS.

44      The Commission made use of that power in adopting the GIP-CS. Article 5(1)(d) thereof provides, inter alia, that ‘testing of candidates ... shall focus in particular on the candidates’ general aptitudes, in particular their verbal and numerical reasoning capacity’. The same provision adds that candidates will be listed in the database put at the disposal of the Institutions and Community Agencies, provided they have ‘passed the tests’.

45      Without it being necessary to settle whether it is thereby requisite for each of the tests to be eliminatory, it follows, in any event, from the terms thus used that Article 5 of the GIP-CS makes the recruitment of members of the contract staff subject to the condition that candidates at least pass the selection test overall and does not preclude certain of those tests, taken in isolation, from being eliminatory.

46      EPSO published the call for expression of interest and the general information on the structure and evaluation of the tests pursuant to Article 5 of the GIP-CS. Thus, the call for expression of interest stated that candidates ‘will be invited to sit tests ... to assess ... in particular their ... reasoning capacity’ and that only those ‘[c]andidates who are successful in all the tests will be listed in [the] database’ referred to in paragraph 44 above. Moreover, the general information on the structure and evaluation of the tests fixed the minimum number of points needed to satisfy the verbal and numerical reasoning test at 50%.

47      The applicants claim, however, that, if Article 5 of the GIP-CS is to be interpreted as authorising the organisation of a verbal and numerical reasoning test, one which is moreover eliminatory in nature, it is contrary to the principle, derived from Article 27 of the Staff Regulations and Article 12 of the CEOS, according to which the selection procedures are to be directed to securing the recruitment of the most competent candidates.

–       The plea of illegality of Article 5 of the GIP-CS

48      The plea of illegality raised by the applicants is inadmissible and, in the alternative, unfounded.

49      First, the applicants are unable to rely validly on that plea of illegality in the present action. The rule that there should be harmony between a complaint, within the meaning of Article 90(2) of the Staff Regulations, and the subsequent action requires that, for a plea before the Community judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the authority authorised to conclude contracts to know in sufficient detail the criticisms made by the person concerned of the contested decision. That rule is justified by the purpose of the pre-contentious procedure, which is to facilitate the amicable settlement of disputes arising between officials and the administration (Case 58/75 Sergy v Commission [1976] ECR 1139, paragraph 32; Case 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paragraph 9; Case T‑135/05 Campoli v Commission [2006] ECR‑SC I‑A‑2‑297, II‑A‑2‑1527, paragraph 32; and Case F‑76/06 Tsirimokos v Parliament [2007] ECR‑SC I‑A‑1‑0000, II‑A‑1‑0000, paragraph 45). The authority authorised to conclude contracts must thus be informed in sufficient detail of the pleas raised by the applicant in order to be able to offer him any amicable settlement (Campoli v Commission, paragraph 32, and Tsirimokos v Parliament, paragraph 45).

50      However, even given a broad interpretation, it is clear that, in the present case, the issues raised between 30 October and 25 November 2007 by the applicants in Cases F‑20/08 and F‑34/08, and the ‘supplementary complaints’ of 25 January 2008 do not challenge the legality of the GIP-CS. The first steps were limited, in essence, to criticising the difficulty of the verbal and numerical reasoning test and, sometimes, the fact that it was selective, without linking this with the GIP-CS. Despite their more fully developed reasoning, the ‘supplementary complaints’ merely maintain that the nature of the tests concerned did not correspond to the objective of the selection ‘as specified by the department responsible for commissioning the tests, [the] Vice-President [of the Commission] and [the Member of the Commission] in charge of External Relations’, without calling into question the basis of the selection procedure.

51      Second, the plea of illegality raised against Article 5 of the GIP-CS is, in any event, unfounded.

52      Article 27 of the Staff Regulations and Article 12 of the CEOS, upon which the applicants base their arguments, are not applicable to contract staff within the meaning of Article 3a of the CEOS. Moreover, it must be borne in mind that, although Article 82 of the CEOS is underpinned by the principle upon which the applicants rely and according to which the institutions must recruit the most competent members of staff, the article gives each institution a wide discretion to determine the provisions for selecting candidates in the interest of the service (see paragraph 43 above).

53      In that connection, the Commission states that the verbal and numerical reasoning test has the purpose of eliminating the candidatures of persons who, even if they have extensive knowledge and special competences in relation to the post applied for, lack sufficient reasoning capacity to use them. It adds that that test enables it to ensure that members of staff recruited, who could obtain, in due course, a contract of indefinite duration, may be assigned to a variety of tasks. The Commission considers, moreover, that that requirement is particularly important for members of staff called on to work in a delegation, since the interest of the service necessitates regular rotation of staff there. The applicants have not countered those explanations to the requisite legal standard. Moreover, the relevance of the explanations given may be taken to be plausible. It is not unreasonable to consider that the selection of the best candidates implies, for an administration, seeking those who combine significant competences with the intellectual ability to put those competences into practice in a context which is liable to change over time.

54      It follows that Article 5(1)(d) of the GIP-CS does not contravene the principle underlying Article 82 of the CEOS since, at the very least, Article 82 does not bar the organisation of eliminatory verbal and numerical reasoning tests.

55      Consequently, the plea of illegality in respect of Article 5 of the GIP-CS must be rejected.

–       The illegality of the eliminatory verbal and numerical reasoning test which was set in the present case

56      The applicants claim that EPSO was not entitled, in the present cases, to set for them an eliminatory verbal and numerical reasoning test. In that regard they rely, in particular, on the memorandum of the External Service and the letter of the Vice-President of the Commission and the Member of the Commission in charge of External Relations and on the specific features of their situation.

57      According to Article 82(5) and (6) of the CEOS, EPSO is to provide assistance to the different institutions by defining and organising the selection procedures for members of the contract staff whilst complying with the general provisions adopted by the institutions. Moreover, it follows from Article 5(1)(c) and (2) of the GIP-CS that EPSO is to comply with the specific competency profiles and qualifications required by the authority authorised to conclude contracts.

58      It follows, none the less, from those provisions and from Article 3(2) of Decision 2002/620 that EPSO has a wide discretion in the organisation of selection tests.

59      In that context, it should be borne in mind, first, that the memorandum of the External Service and, to a lesser extent, the letter of the Vice-President of the Commission and the Member of the Commission in charge of External Relations contain an ambiguity as regards the fact of the tests concerned being ‘not eliminatory’. It is, therefore, appropriate to interpret them in a way that does not render the selection tests devoid of purpose. Moreover, that memorandum and that letter must also be read in the light of Article 5 of the GIP-CS which (see paragraph 45 above) makes the recruitment of members of the contract staff subject to their at least passing the tests overall. The statements of the External Service and the unilateral declarations of the Vice‑President of the Commission and of the Member of the Commission in charge of External Relations cannot validly derogate from the GIP-CS adopted by the College of Commissioners.

60      The Commission correctly contends that the note of the External Service and the letter of the Vice-President of the Commission and the Member of the Commission in charge of External Relations can be understood as meaning that the tests concerned are not eliminatory in the way that a competition is, in that no limit on the number of successful candidates was fixed beforehand, without, however, announcing that those tests were not eliminatory.

61      That reading of the memorandum of the External Service and of the letter of the Vice-President of the Commission and the Member of the Commission in charge of External Relations fits with the purpose of the selection tests and is compatible with Article 5 of the GIP-CS.

62      Consequently, the memorandum of the External Service and that letter of the Vice‑President of the Commission and of the Member of the Commission in charge of External Relations do not allow a finding that EPSO exceeded the limits imposed on its terms of reference by the Commission by setting an eliminatory verbal and numerical reasoning test.

63      With regard, second, to the need to select the best candidates, it should be borne in mind that the call for expression of interest envisaged, as announced by the memorandum of the External Service, that the tests would be taken in the second language of each of the candidates. Moreover, even if it were eliminatory, the verbal and numerical reasoning test concerned was less important overall than the competence tests. It represented only 30% of the total marks. Despite its eliminatory nature, it was thus of less weight that the test of specific competences, which was also eliminatory, for which the pass threshold was fixed at 55% and which accounted for 50% of the total marks. Nor, moreover, can the test of ‘EU knowledge’ be ignored. Although that test was not in itself disqualificatory, it nevertheless accounted for 20% of the total marks. In addition, a poor result in that test could influence the overall result of the candidates, where the minimum required for all the tests had been fixed at 60%.

64      Lastly, it should be stated that the organisation of a specific selection test for the ‘External Relations’ function profile, the eliminatory nature of the specific competences test and the verbal and numerical reasoning test and the fact that those two tests represented 80% of the total marks, while the general knowledge test was not eliminatory and only accounted for 20% of that total, show that EPSO intended to give precedence to the recruitment of members of staff who had, first, specific competences in the field of external relations and, second, who were equipped with sufficient reasoning capacity for them to be able to use them and, where necessary, to cope with other needs.

65      In the light of those explanations, it must be found that, in the exercise of their respective competences, the Commission and EPSO have not – by providing for the organisation of a verbal and numerical reasoning test, by making it eliminatory in nature and by imposing it on members of staff already in post exceeded the limits of their wide discretion in the present cases.

66      Having regard to all the foregoing, the first plea is not well founded and must, accordingly, be dismissed.

 The second plea, alleging breach of the principle of equality

 Arguments of the parties

67      The applicants observe, first, that the verbal and numerical reasoning test was of poor quality, as demonstrated by the cancellation of question 46. Their results were seriously affected by that poor quality because they had to spend too much time on ambiguous questions, which unsettled them for the remainder of the tests.

68      Second, the applicants argue that the decision to award an additional point to all candidates for each cancelled question did not guarantee equal treatment and the objectivity of the tests.

69      The applicants thus claim that EPSO cancelled 153 questions in the competence tests for various profiles. They cite, in particular, the tests for the following profiles: ‘rural development, food security and environment’, ‘economic development, private and trade sector’ and ‘good governance and security’. The award of a point for each of those questions had the effect of substantially altering the nature of the tests and destroyed the equality between the candidates. That bonus favoured candidates in competence profiles where the questions were cancelled over those candidates in other profiles in which there was no cancellation. Moreover, given the number of questions cancelled, the specific competences test was of only secondary importance in those profiles. Lastly, EPSO cancelled questions in certain languages only. This disadvantaged candidates who sat tests in other languages and who had to answer those questions.

70      The Commission contends that EPSO, like competition selection boards, enjoys a wide discretion. That discretion is necessary, in particular where it is faced with irregularities or errors occurring in the course of tests which cannot be repeated because of the high number of participants and the need to observe the principles of proportionality and sound administration.

71      According to the Commission, repeating many of the tests would in the present case have been disproportionate, so that the decision to cancel questions 31 and 46 of the verbal and numerical reasoning test was sufficient.

72      The Commission denies, in any event, that the cancellation of questions may have discriminated against the applicants.

73      It argues, first, that question of equality of treatment between the candidates does not arise in the contested tests in the same way as in a competition, since the number of successful candidates had not been fixed beforehand and there was no comparative assessment.

74      The Commission insists, second, on the fact that the cancellation of problematic questions complied with the principle of equality within each function group and within each profile.

75      With regard to the verbal and numerical reasoning test for the function profile ‘External Relations’, the Commission points out, third, that the error in the formulation of question 46 was made only in the English version. Therefore, the confusion which allegedly unsettled the applicants could, by definition, have affected only the members of staff who took the test in that language. Moreover, the Commission recalls that it is not possible for discrimination liable to affect the legality of a measure to result from the individual behaviour of the persons concerned themselves. Lastly, it states that, although question 46 was, initially, cancelled only in the English version, it was, subsequently, cancelled in the other languages in order to guarantee the equality of the candidates. Question 31 was also cancelled in the same way and for everyone.

76      As regards the cancellation of questions appearing in the tests of specific competences, the Commission states, fourth, that the applicants all failed the verbal and numerical reasoning test and that that circumstance sets them apart from the other candidates. They did not even have any interest in challenging the validity of the cancellation of questions from the specific competences test.

 Findings of the Tribunal

77      As recognised in the case‑law, a wide discretion must be afforded to the selection board, where it is confronted with irregularities or errors which have occurred in the course of an open competition involving a large number of candidates and which cannot, under the principles of proportionality and sound administration, be rectified by a repetition of the tests in the competition (Joined Cases T‑167/99 and T‑174/99 Giulietti and Others v Commission [2001] ECR‑SC I‑A‑93 and II‑441, paragraph 58).

78      Although EPSO is not a selection board and the test concerned did not take the form of a competition, that case‑law may be extended to it because EPSO is vested with a wide discretion in the organisation of selection tests (see paragraph 58 above).

79      In addition, it is not contested that the call for expression of interest in the present case attracted a large number of candidates.

80      In a situation where some questions posed a problem, EPSO was entitled to consider that it was appropriate to cancel only those questions, since the solution of repeating all the tests would have been disproportionate and contrary to the principle of sound administration.

81      It is necessary, however, to verify that the method of cancellation used does not prejudice the equality between the candidates.

82      It is settled case‑law that the principle of equality requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 63, and Case C‑71/07 P Campoli v Commission [2008] ECR I‑5887, paragraph 50). Moreover, breach of the principle of equality presupposes that the treatment concerned entails disadvantages to some persons as opposed to others (Joined Cases 17/61 and 20/61 Klöckner-Werke and Hoesch v High Authority [1962] ECR 615, 652; Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑0000, paragraph 39; and Case T‑351/02 Deutsche Bahn v Commission [2006] ECR II‑1047, paragraph 137).

83      In the present case, it should be pointed out at the outset that neither the Commission nor EPSO fixed in advance a limited number of successful candidates in the call for expression of interest. Consequently, the selection tests did not involve any direct comparison between the candidates. As the Commission points out, the question of equal treatment between them thus does not arise in the same way as in a competition.

84      However, it cannot be ruled out, even in that context, that the award of an additional point to all the candidates who were faced with problematic questions, as a means of cancelling those questions, may have favoured certain candidates by enabling them to reach more easily the pass thresholds fixed for success in the tests.

85      With regard to the verbal and numerical reasoning test, it is not disputed that only questions 31 and 46 were cancelled. The applicants claim that question 46 nevertheless posed so many problems for them that they were unsettled for the remainder of the tests. At the hearing, they stated that certain candidates skipped that question whilst others persisted in trying to answer it. However, even if that question worried or preoccupied the persons concerned more than others, to the point of affecting their ability to answer the entire test, that situation resulted from their own response to the difficulty. Far from demonstrating that the method of cancellation chosen discriminated against them, the applicants’ arguments emphasise, on the contrary, the existence of differences between them and the other candidates (see, to that effect, Case T‑189/99 Gerochristos v Commission [2001] ECR‑SC I‑A‑11 and II‑53, paragraph 26). Moreover, the two questions concerned were cancelled in all language versions of the test precisely in order to ensure the equal treatment of the candidates.

86      Furthermore, the pleas raised concerning the cancellation of 153 questions in the tests of specific competences for different profiles are irrelevant. The applicants failed the verbal and numerical reasoning test the eliminatory nature of which was admissible, as the assessment of the first plea shows.

87      In those circumstances, it does not appear that the solution chosen by EPSO of cancelling the problematic questions was capable of prejudicing the equality of the candidates, to the detriment of the applicants.

88      The second plea is, consequently, unfounded and must be rejected.

 The third plea alleging infringement of Article 1d of the Staff Regulations and the duty to state grounds

 Arguments of the parties

89      The applicants claim to have established a certain number of irregularities from which it follows that the contested measures infringe the principle of equality. In accordance with the judgments in Case T‑159/98 Torre and Others v Commission [2001] ECR‑SC I‑A‑83 and II‑395, paragraphs 46 and 47, and Case T‑24/01 Staelen v Parliament [2003] ECR‑SC I‑A‑79 and II‑423, paragraphs 47 to 58, it is thus for the Commission to prove that those irregularities did not affect the final result of the tests. However, according to the applicants, the Commission has not provided such proof.

90      The applicants infer from this a breach of the duty to state grounds and infringement of Article 1d(5) of the Staff Regulations.

91      The Commission replies that it is not obliged to refute the applicants’ allegations when they adduce no evidence of any discrimination.

92      Moreover, the Commission states in its defence in Case F‑75/08 that the plea alleging breach of the duty to state grounds is inadmissible because it lacks any developed argument in that regard. It is, in any event, unfounded, since the applicants were aware of the reasons justifying the contested measures from the information provided to candidates during the selection procedure, from the answers given to ‘requests for re-examination’ made between 30 October and 25 November 2007 and from the answers given to the complaints lodged on 25 January 2008.

 Findings of the Tribunal

93      It should be stated at the outset that the applicants base their third plea inter alia on Article 1d(5) of the Staff Regulations, the application of which has not however been extended to members of the contract staff.

94      Next, the plea appears to be linked to the first and second pleas. Further, since the Tribunal has held that those pleas are not well founded for the reasons set out in paragraphs 43 et seq. and paragraphs 77 et seq., it is no longer necessary to inquire whether the applicants have established the existence of irregularities giving rise to a presumption that the contested measures infringe the principle of equality. The plea is ineffective. Since the examination of the first two pleas has made clear that no irregularity during the tests could be established, the Commission had no need to start from the premiss that such irregularities had occurred and then prove that they had had no effect on the final result of the tests and had not been the source of discrimination.

95      Lastly, the plea is not without ambiguity. It follows from its wording and particularly from the reference to the judgments in Torre and Others v Commission and Staele v Parliament that the applicants appear to criticise the Commission for not establishing, before the Tribunal, that the alleged irregularities had no influence on the result of the tests concerned.

96      If that is indeed the interpretation which must be given to the plea, it is also clear that the applicants are thereby confusing, on the one hand, the asserted duty to state grounds, which constitutes, under Article 25 of the Staff Regulations and Articles 11 and 81 of the CEOS, a formality inherent in the adoption of the administrative decisions adversely affecting staff and capable of being challenged before the Tribunal, and, on the other hand, the exchange of arguments and the exercise of the rights of the defence in the context of the court proceedings to which the provisions mentioned above do not apply.

97      Accordingly, the third plea must be rejected.

98      Taking account of all the foregoing, the action must be dismissed in its entirety.

 Costs

99      Under the terms of Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Title 2, Chapter 8 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. By virtue of Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.

100    The result of the present judgment is that the applicants are the unsuccessful parties. Furthermore, in its pleadings the Commission has expressly requested that the applicants be ordered to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, the applicant must be ordered to pay the costs.

101    It is necessary, however, to take account of the fact that the applicants in Case F‑20/08 and the applicant in Case F‑34/08, respectively, brought, first, those actions and, second, the action in Case F‑75/08, which was also brought by the other applicants in that latter case.

On those grounds,

THE TRIBUNAL (Second Chamber)

hereby:

1.      Dismisses the actions in Joined Cases F‑20/08, F‑34/08 and F‑75/08;

2.      Orders Mr Aparicio and the other applicants whose names appear in the Annex under numbers 1 to 18 to pay the costs in Case F‑20/08 and nineteen forty-sixths of the costs in Case F‑75/08; orders Ms Simon to pay the costs in Case F‑34/08 and one forty‑sixth of the costs in Case F‑75/08; and orders the applicants whose names appear in the Annex under numbers 19 to 40 and 42 to 46 to pay twenty six forty‑sixths of the costs in Case F‑75/08.

Kanninen

Boruta

Van Raepenbusch

Delivered in open court in Luxembourg on 29 September 2009.

W. Hakenberg

 

      H. Kanninen

Registrar

 

       President

The text of the present decision and the texts of the decisions of the Courts of the European Union cited in it are available on the internet site www.curia.europa.eu

ANNEX

In view of the large number of applicants in this case, their names are not listed in this annex.


* Language of the case: French.